WASHINGTON – As former President Donald Trump dominates the Republican presidential primary, some progressive groups and legal experts argue that a rarely used clause in the Constitution prevents him from being president after the January 6, 2021 attack on the United States Capitol.
The Fourteenth Amendment bars from office anyone who has ever taken an oath to uphold the Constitution, but then “participated” in an “insurrection or rebellion” against it.
A growing number of legal scholars say the post-Civil War clause applies to Trump following his role in trying to overturn the 2020 presidential election and encouraging his supporters to storm Congress.
Two progressive nonprofits are vowing to challenge in court if state election officials put Trump on the ballot despite those objections.
The effort is likely to trigger a series of lawsuits and appeals in several states that could ultimately reach the Supreme Court, possibly in the midst of the 2024 primary season.
The matter adds further potential legal chaos to an already hectic nomination process due to the fact that the frontrunner faces four criminal trials.
Now Trump’s very ability to run could be in contention when Republicans begin choosing their candidate, beginning with the Iowa caucuses on January 15.
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“There is a very real possibility that these cases will be active during the primary,” said Gerard Magliocca, a law professor at Indiana University, who warned that there could be different outcomes in different states before the Supreme Court makes a final decision. .
“Imagine you have an opinion that he’s not eligible and then there’s another primary where he’s on the ballot.”
Although it is unlikely that most litigation will begin before October, when states begin to set their ballots for the upcoming primaries, the matter has received a boost from a recently released law review article written by William Baude and Michael Paulsen, two leading conservative law professors.
They concluded that Trump should be excluded from the ballot because of the third section clause of the Fourteenth Amendment.
That section bars anyone from Congress, the military, and federal and state offices if they have previously taken an oath to support the Constitution and “has participated in an insurrection or rebellion against it, or has given aid or comfort to its enemies.”
He said he saw it on television.
In their article, which is scheduled to be published in the University of Pennsylvania Law Review, Baude and Paulsen said they believe the meaning is clear.
“Taking Section Three seriously means excluding from current or future office those who attempted to subvert legal governmental authority under the Constitution after the 2020 election,” they write.
The issue came up during last week’s Republican presidential debate in Milwaukee, when former Arkansas Gov. Asa Hutchinson warned that “this is something that could disqualify him (Trump) under our rules and the Constitution.”
In 2021, the nonprofit organization Free Speech For People sent letters to the top election official in all 50 states requesting Trump’s exclusion if he were to run for president again.
Ron Fein, the group’s legal director, said that after years of silence, officials are beginning to discuss the matter.
The former president turns himself in to a Georgia prison, posts bail and is released on probation.
“The framers of the Fourteenth Amendment learned the bloody lesson that once an oath-breaking insurgent engages in an insurrection, he cannot be trusted to return to power,” Fein said.
Ahead of the 2022 midterm elections, the group filed a lawsuit to remove U.S. Congresswoman Marjorie Taylor-Greene and then-Rep. Madison Cawthorn — both Republicans — from the ballot for their support of the Jan. 6 protest.
The judge in charge of Greene’s case ruled in her favor, while Cawthorn’s case became irrelevant after he was defeated in his primary.
The complex legal issues became apparent Wednesday when the Arizona Republic newspaper reported that Arizona Secretary of State Adrian Fontes said his hands were tied because of a ruling by the state’s top court that only Congress can exclude someone. of the Arizona presidential ballot.
Fontes, a Democrat, called the ruling “completely and utterly wrong” in an interview with the Republic, but said he would comply.
This was said by the former president after turning himself in to the authorities and becoming prisoner number P01135809. Carolina Ardila has the details from the studio.
If Trump appears on the Arizona ballot, those who believe he is unqualified can still sue in federal court to exclude him.
Other secretaries of state are cautiously navigating the legal minefield.
In a radio interview earlier this week, Michigan Secretary of State Jocelyn Benson, a Democrat, said “valid legal arguments are being made” to keep Trump off the ballot and that’s something she’s discussing. with other secretaries of state, including those in states that are presidential battlegrounds.
Brad Raffensperger, the Georgia secretary of state, a Republican who resisted pressure from Trump when he tried to overturn the 2020 results in that state, suggested that the issue should be up to voters.
“As Georgia’s Secretary of State it is clear to me that voters are smart and deserve the right to decide elections,” he said in an emailed statement.
Trump argues that any effort to prevent him from appearing on a state’s ballot amounts to “election interference,” the same argument he makes for the criminal charges brought against him in New York, Atlanta, Washington DC and Florida.
“And I think what’s happening is there’s really been a backlash against that,” Trump told the conservative Newsmax channel.
Indeed: The New Hampshire secretary of state’s office was inundated with messages on the subject Monday, said Anna Sventek, a spokeswoman.
Earlier in the day, a conservative personality had falsely claimed that the state was about to remove Trump from the ballot.
On Wednesday, a long-shot Republican presidential candidate — John Anthony Castro of Texas — filed a complaint in a New Hampshire court, arguing that the Fourteenth Amendment barred Trump from the ticket in that state.
Eventual larger court challenges are expected to attract further legal confrontation. But Michael McConnell, a Stanford University law professor who is conservative and does not support Trump, said the case will not be easy.
McConnell questions whether the provision applies to the presidency because it is not one of the offices specifically listed in the Fourteenth Amendment, which instead refers to the “elector of president and vice president.”
He also said it was not clear whether the January 6 attack constituted an “insurrection” under the law or just a less legally complicated incident such as a riot.
But McConnell also worries about the political precedent if Trump is ultimately excluded from any state ballot.
“This is not just about Trump. Every election where someone says something in favor of a riot that interferes with law enforcement, their opponents are going to run to try and get them disqualified,” he said.
Ratified in 1868, the Fourteenth Amendment helped guarantee civil rights for freed slaves and, ultimately, all people in the United States, but it was also used to prevent former Confederate officials from becoming members of Congress and assuming control of the government against which they had just rebelled.
The clause allows Congress to lift the ban, which it did in 1872 when the political will to continue the ban on ex-Confederates waned.
The arrangement was almost never used after that. In 1919, Congress refused to give a socialist a seat in Congress on the grounds that he had provided aid and comfort to the country’s enemies during World War I.
Last year, in the first use of the provision since then, a New Mexico judge, under the clause, barred from office a rural county commissioner who entered the Capitol on Jan. 6.
If any state bars Trump from running, his re-election campaign is expected to sue and possibly take the case directly to the Supreme Court.
If no state forbids him, Free Speech For People and Citizens for Responsibility and Ethics in Washington, another nonprofit, will likely object to his presence on the ballot.
It’s critical that the high court resolve the issue before the general election, said Edward Foley, a law professor at Ohio State University. His fear is that if Trump’s qualifications are not resolved and he wins, Democrats could try to block his ascension to the White House on January 6, 2025, triggering another democratic crisis.
Those who push to invoke the amendment concur, saying they believe the case is clear.
“This is not a punishment. It’s like saying that a president must be 35 years old and a citizen by birth,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics. “You shouldn’t have helped organize an uprising against the government, either.”
2023-09-01 00:23:38
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